Participate in our virtual COMMUNIA salon on 12th of December, from 1500h to 1630 CET, to find out, and discuss the implementation of the DSM Directive in (almost) all EU Member States with our panel of experts.

Joining us for the ceremony will be Christina Angelopoulos, Felix Reda, Paul Keller and Teresa Nobre who will share their views and present their research on the implementation process across the EU.

If you want to find out our implementation rankings and see whether any Member State has received the coveted “douze points” or if you just need an excuse to get in the Eurovision mood before May 2024, register now and we will send you a Zoom link for the event.

Disclaimer: Clicking on this link will direct you to a Google Form and may lead to data being collected by and shared with third parties. Proceed only if you agree.

The post COMMUNIA Salon: Eurovision DSM Contest Afterparty appeared first on COMMUNIA Association.

As discussed in greater detail in our Policy Paper #15, COMMUNIA deems it essential that the flexibilities for text-and-data mining enshrined in Articles 3 and 4 of the Copyright in the Digital Single Market Directive are upheld. For this approach to work in practice, we welcome practical initiatives for greater transparency around AI training data to understand whether opt-outs are being respected.

The full statement is provided below:

Statement on Transparency in the AI Act

The undersigned are civil society organizations advocating in the public interest, and representing  knowledge users and creative communities.

We are encouraged that the Spanish Presidency is considering how to tailor its approach to foundation models more carefully, including an emphasis on transparency. We reiterate that copyright is not the only prism through which reporting and transparency requirements should be seen in the AI Act.

General transparency responsibilities for training data

Greater openness and transparency in the development of AI models can serve the public interest and facilitate better sharing by building trust among creators and users. As such, we generally support more transparency around the training data for regulated AI systems, and not only on training data that is protected by copyright.

Copyright balance

We also believe that the existing copyright flexibilities for the use of copyrighted materials as training data must be upheld. The 2019 Directive on Copyright in the Digital Single Market and specifically its provisions on text-and-data mining exceptions for scientific research purposes and for general purposes provide a suitable framework for AI training. They offer legal certainty and strike the right balance between the rights of rightsholders and the freedoms necessary to stimulate scientific research and further creativity and innovation.

Proportionate approach

We support a proportionate, realistic, and practical approach to meeting the transparency obligation, which would put less onerous burdens on smaller players including non-commercial players and SMEs, as well as models developed using FOSS, in order not to stifle innovation in AI development. Too burdensome an obligation on such players may create significant barriers to innovation and drive market concentration, leading the development of AI to only occur within a small number of large, well-resourced commercial operators.

Lack of clarity on copyright transparency obligation

We welcome the proposal to require AI developers to disclose the copyright compliance policies followed during the training of regulated AI systems. We are still concerned with the lack of clarity on the scope and content of the obligation to provide a detailed summary of the training data. AI developers should not be expected to literally list out every item in the training content. We maintain that such level of detail is not practical, nor is it necessary for implementing opt-outs and assessing compliance with the general purpose text-and-data mining exception. We would welcome further clarification by the co-legislators on this obligation. In addition, an independent and accountable entity, such as the foreseen AI Office, should develop processes to implement it.

Signatories

• COMMUNIA
• Creative Commons
• Wikimedia Europe

The post Statement on Transparency in the AI Act appeared first on COMMUNIA Association.

The initial Czech approach to implementing the provisions of Article 17 has been disappointing. The government’s draft bill was largely limited to restating the provisions of Article 17 without introducing any ex-ante safeguards against overblocking or any meaningful remedies for users whose uploads are blocked or removed by automated upload filters. The proposal also included a few positive elements, such as a targeted definition of OCSSPs and an amendment of the existing caricature and parody exception in the Czech copyright act to explicitly include pastiche.

In February of last year, we pointed out the shortcomings of the Article 17 implementation in a position paper that we published together with Open Content, Wikimedia CZ, Iuridicum Remedium and “Za bezpecny a svobodny internet“. In April of this year during the subsequent parliamentary proceedings, Pirate Party MP Klára Kocmanová tabled a set of amendments designed to introduce additional safeguards against overblocking into the text.

During last week’s third reading of the bill in the Chamber of Deputies, these amendments resulted in a much better national implementation of Article 17 that substantially alters the government’s original proposal and incorporates some practical rules for platforms to implement those obligations. This is especially interesting since the Czech Republic is one of the first countries to proceed with its implementation after the CJEU ruling in case C-401/19 has brought more clarity on the safeguards that need to be included in national implementations of Article 17.

The amendments adopted last week modify § 47 — which implements the licensing and filtering obligations from Article 17(4) — and introduce a new § 51(a).

Two new paragraphs were added to the proposed § 47 of the Copyright Act: A new paragraph (4), which implements the first sentence of Article 17(8) and proibits general monitoring of content uploaded by users of online platforms; and a new paragraph (3), which looks like an attempt to integrate the criteria developed by the Advocate General in his opinion in Case C-401/19 directly into the Czech Copyright Act. The latter limits the use of automated content recognition technologies that results in the blocking or removal of uploads to cases where the uploads are “identical or equivalent” to a work that rightholders have requested to be blocked. The Article further defines that (translation via deepl):

Identical content means identical content without additional elements or added value. Equivalent content means content which differs from the work identified by the author only by modifications which can be considered as insignificant without the need for additional information to be provided by the author and without a separate assessment of the lawfulness of the use of the work with modifications under this Act.

This language inserts one of the core findings of the CJEU ruling — that platforms can only be required to detect and block content on the basis of the information provided by rightholders and cannot be required to block content which, in order to be found unlawful, would require an independent assessment of the content by the platforms — into the Czech implementation. While it does so by referencing concepts developed by the AG, instead of the criteria from the final judgement, it is a welcome addition that will offer a better protection to users’ rights than the literal implementation proposed by the government.

The newly added § 51(a), on the other hand, introduces remedies for cases where platforms repeatedly block or remove lawful user uploads. As we have argued previously, one of the most problematic parts of Article 17 is that it includes strong incentives for platforms to remove user uploads (because they otherwise risk being held liable for copyright infringement) but does not clarify what kind of risks platforms face when their use of upload filters violates users’ freedom of expression.

The newly introduced § 51(a) of the Czech Copyright Act would address this issue by giving “legal persons authorised to represent the interests of competitors or users” the ability to request “a ban on the provision of the service” when platforms “repeatedly and unlawfully” block or remove works uploaded by their users (all translations via deepl).

A situation in which platforms risk getting shut down as a consequence of repeatedly curtailing their users’ freedom of speech at the behest of rightholders may be an interesting thought experiment —it would completely reverse the power relationships between platforms and their users —but ultimately shutting down platforms for such violations is a problematic and short-sighted remedy.

Is it really the intent of the Czech lawmaker to shut down a platform as a sanction for blocking or removing lawful uploads and under what conditions would such an extreme measure be imposed? The blocking of an entire platform is clearly counterproductive to the intent of promoting freedom of expression, as it would result in the inaccessibility of all content available on the platform. This makes the remedy introduced in § 51(a) disportionate, which is even more problematic since the article also implies that it can be invoked by competitors.

It is unclear how the drafters of the amendment envisage § 51(a) to work, but it seems clear that — as adopted by the Chamber of Deputies — it will do much more harm than good. While it provides a powerful incentive for platforms not to overblock, invoking this remedy would result in substantial collateral damage that negatively affects the freedom of expression of all other uses of the affected platform.

So what could a more reasonable — and less harmful— remedy look like? What if instead of threatening to shut down the offending platform, § 51(a) threatened to shut down the upload filters instead: If it would prohibit the provision of the automated content recognition (ACR) system for the purpose of blocking or removal of user uploads?

Such a remedy would be much more proportionate, as it addresses the root of the problem (the malfunctioning ACR system) instead of attacking the host (the platform). It would also not cause any collateral damage for other users of the offending platform. It would also be in line with the CJEU’s reasoning as it would prevent filtering systems that do not comply with the standards set by the court from being used.

Shutting down ACR systems that repeatedly overblock would still provide platforms with a powerful incentive to get their systems calibrated right. Given the overall volume of uploads that they have to deal with, platforms do have a very strong interest to be able to rely on automated filters for removing manifestly infringing uploads.

For all of these reasons it seems imperative that the Czech legislator takes another good look at the scope of the remedy introduced in § 51(a). Adding explicit remedies against overblocking is an important element of balanced national implementations, but in its current form the Czech approach risks throwing out the baby with the bathwater.

However, if the scope of the injunctive relief would be limited to banning the continued provisions of overzealous upload filters, the proposed Czech implementation of Article 17 could even become a template for other Member States seeking to bring their implementations in line with the requirements of the CJEU while otherwise staying relatively close to the text of the directive.

The post Reflecting the Conclusions of the CJEU? The Evolving Czech Implementation of Article 17 appeared first on COMMUNIA Association.

At the workshop, three websites/databases tracking the status of users’ rights and copyright flexibilities in Europe: https://www.copyrightexceptions.eu, http://www.copyrightflexibilities.eu and http://www.copyrightuser.eu will be launched. In addition, we will gather feedback on the websites’ functionality and plan their future. We will be joined by copyright experts who contributed to the mapping and stakeholders representing various groups of beneficiaries to discuss the state of copyright flexibilities and policy options at the EU and national levels. 

Represented by Teresa Nobre and Paul Keller, COMMUNIA will showcase the project copyrightexceptions.eu, a collaborative effort of COMMUNIA, Open Future and Digital Republic, mapping the European Union’s copyright framework and providing information on the national implementation of the various exceptions and limitations to copyright and related rights contained in EU copyright law.

Registration for both online and offline attendance is free of charge. Please register here.

For any queries, please contact rosie.allison@libereuriope.org.

Programme

9:00 – 9:15 Introduction and greetings (Paul Keller, Caterina Sganga)

9:15 – 10:15 Three platforms to explain, engage, empower

• copyrightexceptions.eu (Paul Keller, COMMUNIA/Open Future)
• copyrightflexibilities.eu (Caterina Sganga, reCreating/Sant’Anna Pisa)
• copyrightuser.eu (Bartolomeo Meletti, reCreating/CREATe Glasgow)

10:15 – 11:15 Flexibilities for teaching and research

Chair: Teresa Nobre (COMMUNIA)

Speakers: Ana Lazarova (COMMUNIA/Sofia University “St. Kliment Ohridski); Justin Jutte (University College Dublin); Matej Myska (Masaryk University Brno)

11.15 – 11.30 – Coffee break

11:30 – 12:30 Flexibilities for cultural uses and preservations

Chair: Caterina Sganga (reCreating/Sant’Anna Pisa)

Speakers: Francisco Duque Lima (KU Leuven); Rita Matulionyte (Macquarie University Sidney); Leo Pascault (Science Po Paris)

12:30 – 13:45 Flexibilities for freedom of expression (quotation, parody, informatory purposes)

Chair: Paul Keller (COMMUNIA/Open Future)

Speakers: Tatiana-Eleni Synodinou (University of Cyprus); Philipp Homar (Donau-Universität Krems); Julien Cabay (Université Libre de Bruxelles (ULB) and University of Liege); Conception Saiz Garcia (University of Valencia)

13.30 – 14.30 Lunch break

14:30 – 15:30 Roundtable on best practices on Copyright flexibilities

• Presentation of best practices and moderation (Caterina Sganga)
• Open debate

15:30 – 16:30 Roundtable on the way ahead: data collection, editorial boards, platforms maintenance

Moderator: Paul Keller (COMMUNIA/Open Future)

16:30 Wrap up, closing and drinks

The post Mapping, explaining, empowering: COMMUNIA and reCreating Europe Workshop on Copyright Flexibilities appeared first on COMMUNIA Association.

Taking place on Monday, September 19th, in Berlin at Robert Bosch Stiftung, Filtered Futures will discuss the consequences of the CJEU ruling on Article 17 of the Copyright Directive for fundamental rights. 

Registration for in-person attendance is now closed. It will be possible to follow the live stream of the conference here.

After the closing of the conference, COMMUNIA will be hosting a networking reception from 17:00 to 19:00.

Programme

08:45-09:15 Door Opening

09:15-09:45 Welcome and Opening Remarks by Susanne Zels (Robert Bosch Stiftung) and Felix Reda (GFF – Society for Civil Rights)

10:00-12:00 Session 1: Fragmentation or Harmonization? The impact of the Judgment on National Implementations – While the CJEU has rejected the Polish challenge to Article 17, the Court has formulated a number of requirements for ensuring that national implementations are fundamental rights compliant. In this light, the opening session of the conference will examine the consequences of the judgment for Member States’ implementations of Article 17. What are the requirements established by the judgment for national legislators? How do the existing national implementations measure up to these requirements? Which implementation strategies are available to those member states that still have to implement the directive? And have platforms already reacted to the existing national implementations?

• Bernd Justin Jütte (​​University College Dublin): Imperatives for implementing Article 17: the importance of national implementations.
• Finn Hümmer (Stockholm University): Implications from C-401/19 for national transpositions under the light of freedom of expression.
• Jasmin Brieske (Goethe University Frankfurt am Main): The impact of the enactment of the German OCSSP Act on selected online platforms.
• Christina Angelopoulos (University of Cambridge): The national implementations of Article 17 of the EU’s CDSM Directive.
• Moderator: Paul Keller (COMMUNIA)

12:00-13:30 Lunch Break

13:30-15:00 Session 2: Balancing Enforcement & Usage Rights in Practice – Protecting legal forms of expression from automated blocking decisions by online platforms is not just a task for the national legislators when transposing Article 17, but also a question of implementation of those provisions by regulators and courts. Who is going to ensure that filtering systems will leave legal uses of copyright-protected works unaffected in practice? How can the balance of competing rights be enforced in cross-border situations? How does the ban on general monitoring obligations as interpreted by the CJEU constrain the content moderation obligations of platforms – in the context of Article 17, but also when applied to other types of illegal content? Will the Digital Services Act improve users’ access to effective remedies against over-blocking?

• Natasha Mangal (University of Strasbourg): Regulating Creativity Online: Proposal for an EU Copyright Institution.
• Daniel Holznagel (academia): Don’t touch the ceiling – Why we should not narrow the EU no-monitoring-obligation-rules.
• Martin Husovec (London School of Economics): Mandatory Filtering Does Not Always Violate Freedom of Expression: Lessons from Poland v Council and European Parliament.
• Moderator: Felix Reda (GFF – Society for Civil Rights)

15:00-15:30 Coffee Break

15:30-17:00 Session 3: Beyond the Judgment: The Future of Freedom of Expression – In its ruling, the CJEU was of the view that the procedural safeguards present in Article 17 protect the ‘essence’ of the right to freedom of expression of the users of online sharing platforms. But many argue that filtering mechanisms can still pose real risks to fundamental freedoms and to the flourishing of parodies, caricatures and pastiche. Is the CJEU classical approach to proportionality balancing apt in a filtered online environment? Do we need a new conceptualisation of the ‘essence’ of fundamental rights? Can the case law from the CJEU and the European Court of Human Rights on freedom of expression offer avenues to better the future of parodic uses? Finally, are we moving towards a European Right to Remix?

• Kevin O’Sullivan (Dublin City University): A new conceptualisation of the ‘essence’ of fundamental rights.
• Sabine Jacques (University of East Anglia, Law School): A two-tier system for freedom of expression.
• Till Kreutzer (iRights.Law): Towards a European Right to Remix (?) – On the new Pastiche exception in the German Copyright Act.
• Moderator: Teresa Nobre (COMMUNIA)

17:00-19:00 Reception hosted by COMMUNIA

*All times are indicated in CEST.

The post The Filtered Futures conference programme is now live appeared first on COMMUNIA Association.

The CJEU decision on Article 17 of the copyright directive has defined a framework for the use of automated content moderation. The Court considers filtering obligations compatible with the right to freedom of expression and information as long as they are limited to use cases that allow for a robust automated distinction between legal and illegal content. In the context of Article 17, upload filters may therefore only be used by online platforms to block manifest infringements of copyright law. The Court leaves it up to the Member States to ensure that legal uses remain unaffected by their national transpositions of Article 17.

The judgment raises a host of important questions for the enforcement of copyright law as well as for the compatibility of upload filters with fundamental rights even beyond copyright law. To discuss these consequences, COMMUNIA and Gesellschaft für Freiheitsrechte are jointly hosting the Filtered Futures conference on Monday, September 19th, at Robert-Bosch-Stiftung in Berlin. Please see below for the preliminary conference programme. A more detailed version of the programme with session descriptions will follow in early September.

Registrations for attending the conference in person are now open. Please consider that participation is limited. Registrations will be considered on a first come, first serve basis.

CONFERENCE PROGRAMME:

08:45-09:15 Registration

09:15-09:45 Opening remarks (Felix Reda, GFF)

09:45-10:00 Coffee break

10:00-12:00 Session 1: Fragmentation or Harmonization? Impact of the Judgment on National Implementations (Christina Angelopoulous, Jasmin Brieske, Finn Hümmer, Bernd Justin Jütte. Chair: Paul Keller, COMMUNIA)

12:00-13:30 Lunch break

13:30-15:00 Session 2: Balancing Copyright & Usage Rights in Practice (Daniel Holznagel, Martin Husovec, Natasha Mangal. Chair: Felix Reda, GFF)

15:00-15:30 Coffee break

15:30-17:00 Session 3: Beyond filters: Impacts of the Judgment on Freedom of Expression (Sabine Jacques, Till Kreutzer, Kevin O’Sullivan. Chair: Teresa Nobre, COMMUNIA)

17:00-19:00 COMMUNIA Reception

Participation is free of charge and a light lunch will be served.

The post Join us for the Filtered Futures conference on 19 September 2022 appeared first on COMMUNIA Association.

The judgment raises a host of important questions for the enforcement of copyright law as well as for the compatibility of upload filters with fundamental rights even beyond copyright law. To discuss these consequences, together with Gesellschaft für Freiheitsrechte we are jointly organizing the “Filtered Futures” conference on Monday, September 19^th 2022, in Berlin.

We are inviting papers from all disciplines contributing to the conference theme. To present your work at Filtered Futures, please complete the submission form by July 10^th, 2022. The form asks for a short abstract of your talk. All applicants will be notified by July 22^th, 2022.

In addition, we will offer an opportunity to present your work to a broader audience through the COMMUNIA website or a dedicated publication.

It will be possible for a limited number of people to attend the conference without presenting their work. Please request participation with: uploadfilter@freiheitsrechte.org

Participation will be free of charge. A light lunch will be served. A limited budget to support travel and accommodation expenses for presenters is available.

Possible topics for conference contributions include:

1. The impact of the ruling on existing national implementations of Article 17:
   1. How are verbatim implementations to be interpreted?
   2. Does the Court mandate or enable a harmonized EU-wide technical implementation of Article 17 by platforms?
   3. Do any national implementations violate the standards set by the ruling?
   4. What role will the Commission guidance play in application of Article 17?
2. Rights and obligations of rights holders and users:
   1. standards for “information provided by rightsholders”
   2. enforcement of user rights
   3. measures against misuse of copyright enforcement tools
   4. sanctions for non-compliance beyond platform liability?
3. Minimum fundamental rights safeguards for the use of upload filters:
   1. different standards for voluntary (based on terms and conditions) and mandatory filtering by platforms?
   2. Do filters sufficiently distinguish between legal and illegal uses?
   3. ex-ante safeguards for use of upload filters
4. Impacts on the relationship of Article 17 to other norms:
   1. intermediary liability for platforms that don’t qualify as OCSSPs
   2. Digital Services Act
   3. other sector-specific content regulation (TERREG, protection of minors)
5. Implications of the ruling on CJEU freedom of expression case-law:
   1. prior restraint and its necessary safeguards
   2. scope of ban on general monitoring obligations

The post Filtered Futures: a Conference to examine upload filters after the CJEU ruling on Art. 17 appeared first on COMMUNIA Association.

On the 28th of April, from 1500h to 1630 CET, we are hosting a virtual COMMUNIA salon to discuss the implications of this highly anticipated judgement and what it means for the national implementations of Article 17.

The Court’s judgement in case C-401/19 will mark an important moment in the discussions about Article 17. Not only will the Court have to decide if (elements of) Article 17 violate fundamental rights, it will also have the opportunity to issue guidance on the different approaches to implementing the provisions of Article 17, which have been taken by those member states that have implemented the article so far (and more clarity for those that have not implemented yet). Finally, the decision should also provide more clarity on the European Commission’s implementation guidance that was issued in June of last year, following an extensive stakeholder dialogue.

A recap of the arguments brought forward by the parties to the case can be found in our report from the hearing, which took place in November 2020. And our summary of the most important aspects of the AG Opinion from last July can be found here.

For this Salon we will be joined by Marco Giorello — Head of the European Commission’s Copyright Unit at DG CONNECT, João Pedro Quintais — Assistant Professor at the Institute for Information Law (IViR), University of Amsterdam, Eliška Pírková — Global Freedom of Expression Lead at Access Now — and Felix Reda — former MEP and project lead Control © at the Gesellschaft für Freiheitsrechte. The Salon will be moderated by Paul Keller and there will be lots of room for audience participation.

The Salon will be hosted in Zoom and it is open for everyone to attend. To join us, please register here and we will send you login details on the morning of the event.

The post COMMUNIA Salon on the CJEU decision on Article 17 and the future of upload filters in the EU appeared first on COMMUNIA Association.

Join us on February 15th at 15:00 CET in an online panel discussion co-hosted by COMMUNIA, Wikimedia Deutschland, and the Right to Research in International Copyright Law project* to discuss this question.

The Directive on Copyright in the Digital Single Market greatly facilitates important activities, such as text and data mining or online teaching in cross-border settings. The value of these provisions is clearer than ever. During the Covid-19 pandemic, we have all witnessed a shift to the digital environment and it is clear that online learning and research are here to stay.

Unfortunately, these new limitations and exceptions to copyright only apply in Europe. The vast majority of educators and researchers in other parts of the world, particularly in the Global South, lack such provisions and, as a result, are not always able to undertake these activities. The current state of legal fragmentation also severely limits cross-border collaboration, demonstrating the need for a global solution. Important fora, including the UN World Intellectual Property Organization, have discussed many of these topics for over 15 years but so far have failed to deliver a solution.

We invite you to participate in this online event and follow the discussion of a distinguished panel of experts on whether and how the provisions of the EU Copyright Directive should serve as a model for multilateral instruments or trade agreements.

Panel:

• Marco Giorello (Head of the Copyright Unit at the European Commission, DG CNECT)
• Ruth L. Okediji (Jeremiah Smith. Jr. Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center)
• Erry Prasetyo (Intellectual Property and Trade Disputes Officer at the Ministry of Foreign Affairs of the Republic of Indonesia) 
• Catherine Stihler (Chief Executive Officer at Creative Commons) 
• Moderated by Teresa Nobre (Vice-President of COMMUNIA)

Please register here in advance. Registered participants will receive detailed information on how to join ahead of the event.

Update: Those who weren’t among the first 100 registrations will be able to follow the synced live stream on YouTube.

*The Project on the Right to Research in International Copyright is supported by Arcadia – a charitable fund by Lisbet Rausing and Peter Baldwin

The post Save the Date: The New EU Copyright Exceptions – A Model for the World? appeared first on COMMUNIA Association.

As a result these platforms need to prevent uploads containing Public Domain or openly licensed works from being blocked or removed as a result of copyright claims from (alleged) rightholders or face sanctions. For example, the German implementation of Article 17 explicitly requires that “after an abusive blocking request in respect of works in the public domain or works whose use by anyone is authorised free of charge, service providers must ensure, to the best of their ability […], that these works are not blocked again”.

To comply with such obligations providers of these platforms will need to maintain repositories of known Public Domain and openly licensed works that can be used as allow-lists. In the white paper published today Reda and Keller argue that, instead of building their own private repositories, service providers should work together to build a shared public repository of Public Domain and openly licensed works. Such a shared public repository would provide value both to the platform providers themselves and to the public. The public would benefit from having access to a growing repertoire of verified Public Domain and openly licensed works, while platform providers would have access to an industry standard resource that allows them to fulfil their obligations under Article 17 and reduce their liability arising from wrongful removals of uploads containing Public Domain and openly licensed works.

The white paper will be presented today during the “Protecting Open Licenses in the EU Copyright Reform” session at the Creative Commons global summit.

With the white paper the authors intend to start a conversation with online content sharing platforms, the EU Commission and civil society to explore the feasibility of their proposal.

The post A Proposal to leverage Article 17 to build a public repository of Public Domain and openly licensed works. appeared first on COMMUNIA Association.